their use, those considerations are apt to be misapplied and to work unnecessary injustice.

So, too, in questions of decided law, the art of a good caselawyer, namely, skill in getting at the real gist of decided cases, is not easily acquired. The same applies to the control of preliminaries and the whole conduct of a trial. The analogy of courts martial is misleading, not only because military law is compact and clearly defined, and because the issues are generally simple, but because military law deals only with the internal affairs of a self-contained community; when the outside public are concerned, the ordinary courts are invoked. In order to make the analogy valid it would be necessary to segregate the members of the Church of England in the same kind of way that soldiers are segregated in barracks. And, furthermore, the great bulk of ecclesiastical law in every church and in every age has little or nothing to do with theology or religion, but is much more akin to ordinary local government law, as any experienced parochial church councillor will, no doubt, readily understand.

It is therefore not surprising that throughout the Report there is no proposal to interfere with the existing practice, in accordance with which the general conduct of judicial proceedings is left in the hands of trained lawyers. But because lawyers are not skilled in theology and ritual, it is also proposed that at every stage expert guidance shall be available whenever such matters come in question; and in order to emphasise the continual dependence of the court upon the spiritual authority it is provided that the Bishop or Archbishop who appoints and confers authority on the judge may also at any time act as judge in his own court if he is so minded.

With these preliminary observations we shall now consider the courts in their order. The Bishop's court, now generally known as the Consistory Court of the diocese, has practically always been in every episcopal church the bedrock of ecclesiastical jurisdiction. In England, ever since the twelfth century, this court has been held before the official who is and has long been known as the Chancellor. In the main it is not proposed to disturb this arrangement; but when cases involve heresy or ritual an assessor will be selected by the Bishop from a panel of theologians and liturgical scholars appointed by the convocation of the province. A new procedure is, however,

introduced in order to avoid formal litigation altogether whenever that is possible and desirable, the conditions being that both sides freely submit to the arbitration of the Bishop, and that he considers the case one proper to be dealt with by himself, in which event his decision will be enforceable like a judgment, but will not become a binding precedent.

The Archbishop's provincial court (known in Canterbury as the Court of Arches, and in York as the Chancery Court) not only deals with appeals from the diocesan courts, but also acts as a court of first instance when, as constantly happens in important cases, it is invited to do so by letters of request. Here again no change is proposed except that the Archbishop may, if he so desires, hold the court in person, and that not more than five assessors may be selected from the bishops of the province and from convocation panels of experts to assist the court in cases of heresy or ritual.

Inasmuch as the chief function of the provincial court is to enunciate law with authority binding on the whole province, this is perhaps the most convenient place to refer to a matter of most fundamental importance in connection with the courts, namely, the nature of judge-made law and the process of judicial legislation. Judicial legislation is for our present purpose, ancillary to statutory legislation, and it is always effected by a complementary and fundamentally different method. A statute (including any general order of a statutory kind) provides in general terms for a certain type of event, and when a good citizen judges for himself that a case has arisen in which the law applies to him, he virtuously acts accordingly. But before the State brings the strong arm of the law into operation it must be satisfied by the judgment of its own tribunal that the law applies to the case in question. That judgment provides an authoritative illustration of the meaning of the law; and since it usually elaborates the law, it also constitutes a subsidiary form of legislation. Now, as long as the legislature is available and active, no difficulty can arise; or, if it does, it can easily be corrected. But when the law is like that of the Medes and Persians, "which altereth not," then it has been found in the modern West, as in the ancient East (and it is indeed obvious) that the law can only be adapted to the altering requirements of a living society by a judicial interpretation, which is sometimes rather strained. This

is bound to be demoralising, because, in such circumstances, the instrument of order is either perverted from its proper use, or it is brought into conflict with the reasonable claims of liberty. The position of a court of appeal then becomes one of extreme difficulty, for its decisions are open to attack in whichever direction they are given. These considerations may, perhaps, afford a sufficient explanation of the dissatisfaction which has been felt for fifty to seventy years with the ecclesiastical courts of appeal, which no amount of judicial skill could possibly remove. And this brings us to the problem which has throughout been the crux of the matter, namely, that presented by the final court of appeal.

The Statute of Appeals, 1532, which proclaimed the autonomy of the Church of England and its sufficiency to carry on the Christian tradition in fellowship with other churches, but uncontrolled by any one of them, was immediately followed by a statute under which any appeal from the provincial court was heard by a commission known as the High Court of Delegates. This appellate jurisdiction was transferred, purely for reasons of efficiency, in 1832, to the Judicial Committee of the Privy Council, where it still remains. No objection was raised at the time of the transfer; but about fifty years ago, especially after the Purchas judgment, the constitution of the court was criticised on the ground that it was a civil court hearing ecclesiastical appeals.

A great question was thus brought to the front, a question both of practical politics and of political theory, namely, the relation of the State to the various societies and groups with which it is brought into contact, and which claim on their own behalf the "natural" rights of liberty and autonomy which were formerly claimed by the individual alone. The Church of a nation, territorially based on and espoused by the State, is certainly no ordinary group. But the Church of England, as a free body relying on the convictions of its members and including only a part of the citizens of the State, must be treated for certain purposes as merely a group, though it is also, even for purposes of the State, very much more.

It will therefore clear the ground to consider, first the relation of the State to other religious denominations; and for this purpose cases decided in reference to the Free Church in Scotland, and the Roman Catholic Church in Ireland, will be convenient. It should, however, be borne in mind that a court of appeal is

one thing and an appeal to the courts is another thing. Now, it has already been pointed out that the State will not exert the strong arm of the law, which protects us all, except on the motion of its own tribunals, so that when protection is claimed for person 7 or property, an appeal must be made to these tribunals, and everyone within the jurisdiction has a right to make such an appeal if he considers that he is unjustly treated according to the standard of the country. Thus, if a man has submitted a dispute to arbitration, or if he belongs to a society which provides machinery for the settlement of differences between its members, then the civil courts will, generally speaking, hold him bound by the result of the arbitration or settlement and will only enquire whether it has been arrived at in the proper way. But if property is held upon a trust, and if there is no other machinery for construing the trust, then the courts will have to construe the trust, even though there may be involved theological questions in which they are not specially versed. There has been no conflict of judicial opinion in this country about this, and some of those who have criticised the decision of the House of Lords in the Free Church case do not seem to have appreciated the grounds of the dissenting judgments. That case came before the House of Lords in 1904 at a time when complete autonomy, without responsibility of any kind to the State or anybody else, was being passionately claimed by various societies, both industrial and religious.

This fashion, which is not yet fully spent, is perhaps responsible for the failure of Dr. Figgis, in his well-known book on "Churches in the Modern State," fully to appreciate what was then in issue. The only question which was immediately in issue was whether certain property was held in trust for a continuing minority of the former members of the Free Church (who, admittedly, preserved its name and system of government and fundamental principles), or whether it belonged to a majority of those who were, or had been, members of the Free Church, but who had amalgamated into a church known as the United Free Church, which was alleged to hold different fundamental principles. No one disputed that property might have been given to the Free Church, with liberty to change its principles and to amalgamate with whom it would. The only question was whether the property in dispute had in fact been so given. Those judges

who held that it had not were driven to consider what the fundamental principles of the Free Church were; and the disclosure of the difficulty which thus arose has doubtless been of advantage to the Commission, whose report we are now considering.

In the recent Roman Catholic case, the question was whether a priest had been properly removed from his parish by the Bishop. It was agreed on all hands that the case was one of contract, and that it must be decided by the "Laws, Ordinances and Canons of the Roman Church." The only question was as to how that law should be proved. It was held that it must be proved (or, rather, the effect of it proved) by canonists expert in Roman Canon Law, and as their testimony that the priest had been regularly removed was not impugned, the Bishop won his case.

Let us now turn to the Church of England. Here the ecclesiastical courts, or at least the diocesan and provincial courts, were established, substantially in their present form, in the twelfth century; and, except during the short period of the Commonwealth, have been sitting continuously ever since. The law which they administer needs no proof, because it is the law of the land and is recognised by the State. It is therefore necessary at this point to observe that a court of appeal may have to perform one or both of two distinct functions. It is always the business of a court of appeal to see that the inferior court has acted regularly and within its jurisdiction; and it is sometimes, or within certain limits, the business of a court of appeal (its strict and proper business as such) to see that the inferior court has decided rightly. Where the court of appeal in its civil capacity is dealing with an ecclesiastical tribunal, it is sufficient that the civil court should perform the first of these functions. Thus, in the Roman Catholic case just referred to, all that the civil court had to determine was whether the priest had been regularly removed in accordance with Roman Canon Law. It was not within its province to elaborate or interpret or otherwise interfere with the Roman Canon Law, nor to decide whether the ecclesiastical tribunal was right or wrong in the decision at which it had arrived, provided only it had acted regularly and within its jurisdiction. But, because the Church of England is an established church, the King's court of final appeal in ecclesiastical causes has performed a more extended function, and has been, at least in its office, if not always in its constitution, an ecclesiastical